Local Government Implications Regarding the Cannabis Act

There are three major areas of concern facing local governments with the passage of House Bill 1 (“Cannabis Act”), which will go into effect on Jan. 1, 2014:

Local Government Property: The Cannabis Act states that cannabis cannot be used in any public space, which is defined to include all local government buildings as well as any place “an individual could reasonably be expected to be observed by others.” There may well be some gray areas in this definition, such as how that would apply to a wooded trail in a public park, but another consideration is that the Illinois Smoke Free Act also applies to smoking cannabis. Thus, many facilities that are not specifically prohibited areas under the Cannabis Act, like hospitals, restaurants, libraries, gaming facilities, and 15’ of entrances/exits to public accessible buildings, are areas in which a person would be prohibited from smoking cannabis, although there is nothing that inherently prevents a person from ingesting cannabis in food form at those Smoke Free locations, unless the Cannabis Act restricts use in those areas.

Municipal Offense Ordinances: Village Boards and City Councils should review their existing ordinances regarding possession of cannabis and drug paraphernalia. Licensed cannabis users are generally exempt from prosecution or civil penalties for possession or use of legally obtained cannabis, unless they are “under the influence,” in violation of other law (e.g. while driving), or in a prohibited area under the statute. The Cannabis Act provides that cannabis cannot be used at or in schools, motor vehicles, licensed home child care facilities, correctional facilities and defined “public places” (discussed above). Beyond the listed prohibited locations, the preemption clause generally limits local governments (except colleges and universities) from otherwise prohibiting use or possession of legally obtained cannabis by a licensed user, or possession by a licensed caregiver.

Zoning: the Cannabis Act provides for a maximum of 22 cannabis cultivation centers in the state (1 per Illinois State Police District) and 60 cannabis dispensaries (to be spread throughout the state to allow access by anyone licensed to use medicinal marijuana). Municipalities have some ability to implement reasonable zoning ordinances regarding cannabis facilities. Municipalities can designate, for example, the specific zoning districts where cannabis facilities are allowed (whether as a permitted or special use) and impose reasonable restrictions.

There are additional statutory requirements for where cultivation centers and dispensaries can be placed, such as that dispensaries cannot be placed within 1,000 feet of existing schools (private or public) or day care centers, whether operated out of a home or a stand alone facility. Cultivation centers cannot be placed within 2,500 feet of those same facilities, as well as any area zoned for residential use.

It should also be noted that the actual operation of all facets of the medical cannabis distribution chain, from a cultivation center to an end user, will not likely be fully functional for several months after the law takes effect. Various state departments, including the Department of Agriculture, the Department of Financial and Professional Regulation, the Department of Health, and the Illinois State Police, must coordinate efforts and, in some cases, establish guidelines before the first licensed users will be able to obtain cannabis.